Gomez Velez v. Holder , 456 F. App'x 48 ( 2012 )

10-1305-ag
Gomez Velez v. Holder
BIA
A089 013 442
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER
FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF
APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER
IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY
ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
1 At a stated term of the United States Court of Appeals
2 for the Second Circuit, held at the Daniel Patrick Moynihan
3 United States Courthouse, 500 Pearl Street, in the City of
4 New York, on the 24th day of January, two thousand twelve.
5
6 PRESENT:
7 JON O. NEWMAN,
8 JOSÉ A. CABRANES,
9 RAYMOND J. LOHIER, JR.,
10 Circuit Judges.
11 _____________________________________
12
13 CARLOS ALBERTO GOMEZ VELEZ,
14 Petitioner,
15
16 v. 10-1305-ag
17 NAC
18 ERIC H. HOLDER, JR., UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _______________________________________
22
23 FOR PETITIONER: Glenn T. Terk, Wethersfield,
24 Connecticut.
25
26 FOR RESPONDENT: Tony West, Assistant Attorney
27 General; Ernesto H. Molina, Jr.,
28 Assistant Director; D. Nicholas
29 Harling, Trial Attorney, Office of
30 Immigration Litigation, United
31 States Department of Justice,
32 Washington, D.C.
1 UPON DUE CONSIDERATION of this petition for review of a
2 Board of Immigration Appeals (“BIA”) decision, it is hereby
3 ORDERED, ADJUDGED, AND DECREED, that the petition for review
4 is DENIED.
5 Carlos Alberto Gomez Velez seeks review of a March 10,
6 2010, order of the BIA, denying his motion to reconsider its
7 July 24, 2009, decision in which it affirmed the April 11,
8 2008, removal order of Immigration Judge (“IJ”) Paul M.
9 Gagnon. In re Gomez Velez, No. A089 013 442 (B.I.A. Mar.
10 10, 2010). We assume the parties’ familiarity with the
11 underlying facts and procedural history in this case.
12 We review the BIA’s denial of a motion to reconsider
13 for abuse of discretion. See Jin Ming Liu v. Gonzales, 439
14 F.3d 109, 111 (2d Cir. 2006) (per curiam). As an initial
15 matter, because the petition for review is timely only as to
16 the BIA’s 2010 decision, we have jurisdiction to review only
17 the BIA’s 2010 denial of Gomez Velez’s motion to reconsider,
18 not the BIA’s underlying dismissal of his appeal. See
19 8 U.S.C. § 1252(b)(1); Nwogu v. Gonzales, 491 F.3d 80, 84
20 (2d Cir. 2007) (per curiam); Ke Zhen Zhao v. U.S. Dep’t of
21 Justice, 265 F.3d 83, 90 (2d Cir. 2001). We conclude that
22 the BIA did not abuse its discretion in its denial of
23 reconsideration.
2
1 In his motion to reconsider, Gomez Velez argued that
2 the IJ did not allow him to present evidence in support of
3 his motion to suppress evidence of his alienage obtained as
4 a result of his arrest. He has not explained, however,
5 before the BIA or this Court, what evidence he would have
6 presented that might have changed the outcome in his case.
7 Accordingly, the BIA did not abuse its discretion in denying
8 reconsideration on this ground. See Aslam v. Mukasey, 537
9 F.3d 110, 115 (2d Cir. 2008) (per curiam) (denying due
10 process claim because alien “fail[ed] to persuasively argue
11 that he was prejudiced”); Shi Jie Ge v. Holder, 588 F.3d 90,
12 96 (2d Cir. 2009) (denying due process claim because “any
13 injury suffered as a result has been cured because [the
14 alien] has been afforded the requisite full and fair
15 opportunity to litigate the merits of his . . . claim before
16 the BIA and this Court”); Rajah v. Mukasey, 544 F.3d 427,
17 448 (2d Cir. 2008) (in the absence of “unresolved issues,”
18 an IJ’s failure to hold an evidentiary hearing regarding the
19 petitioner’s removability did not require remand).
20 Gomez Velez also argued in his motion to reconsider
21 that the BIA improperly engaged in fact-finding by relying
22 on a declaration he submitted on appeal. In denying the
3
1 motion, the BIA responded that it had not in fact relied on
2 the declaration, but rather on his statements during the
3 proceedings before the IJ. Gomez Velez does not challenge
4 or even acknowledge the BIA’s response or the fact that the
5 IJ found the same facts, but simply reiterates that the BIA
6 erred in relying on his declaration. Thus, there is no
7 basis to find that the BIA abused its discretion in denying
8 the motion to reconsider on this ground. See Belortaja v.
9 Gonzales, 484 F.3d 619, 624 (2d Cir. 2007); Xian Tuan Ye v.
10 Dep’t of Homeland Sec., 446 F.3d 289, 296 (2d Cir. 2006)
11 (per curiam) (recognizing that the BIA does not overstep its
12 authority when it relies on facts already in the record).
13 Finally, Gomez Velez argued in his motion to reconsider
14 that even if his initial stop was due to a traffic
15 violation, his subsequent seizure was an egregious violation
16 of his rights warranting suppression because the Middletown
17 police officer who arrested him was not authorized to
18 enforce immigration law. We have explained that an
19 egregious constitutional violation will trigger the
20 exclusionary rule in removal proceedings where, either:
21 (1) “an individual is subjected to seizure for no reason at
22 all . . . if the seizure is sufficiently severe”; or (2)
4
1 “even where the seizure is not especially severe . . . if
2 the stop was based on race (or some other grossly improper
3 consideration).”* Almeida-Amaral v. Gonzales, 461 F.3d 231,
4 235 (2d Cir. 2006).
5 Before this Court, Gomez Velez suggests that race may
6 have played a role in his arrest, pointing to evidence
7 submitted before the IJ of a pending complaint against the
8 officer for racial profiling. However, because Gomez Velez
9 did not exhaust this issue before the BIA, we decline to
10 address this argument. See Lin Zhong v. U.S. Dep’t of
11 Justice, 480 F.3d 104, 122 (2d Cir. 2007).
12 Although Gomez Velez argues that his arrest was an
13 egregious violation of his constitutional rights because the
14 arresting officer did not have authority to enforce
15 immigration law, he cites no binding or relevant authority
16 for this proposition. As the government points out, at
17 least in some circumstances federal immigration law
18 contemplates the cooperation of state employees with the
19 federal government in “the identification, apprehension,
*
We have also recognized that exclusion is
appropriate where the Fourth Amendment violation
undermined the reliability of the evidence in dispute.
See Almeida-Amaral, 461 F.3d at 235. Here, however,
Gomez Velez has not raised any challenge to the veracity
of the evidence of his alienage.
5
1 detention, or removal of aliens not lawfully present in the
2 United States.” 8 U.S.C. § 1357(g)(10). Because Gomez
3 Velez refers to no relevant facts or law to support his
4 assertion that the arresting officer was not authorized to
5 enforce federal immigration law, we cannot find that the BIA
6 abused its discretion in denying his motion to reconsider.
7 See Kaur v. BIA, 413 F.3d 232, 233-34 (2d Cir. 2005) (per
8 curiam).
9 For the foregoing reasons, the petition for review is
10 DENIED. As we have completed our review, any stay of
11 removal that the Court previously granted in this petition
12 is VACATED, and any pending motion for a stay of removal in
13 this petition is DISMISSED as moot. Any pending request for
14 oral argument in this petition is DENIED in accordance with
15 Federal Rule of Appellate Procedure 34(a)(2), and Second
16 Circuit Local Rule 34.1(b).
17 FOR THE COURT:
18 Catherine O’Hagan Wolfe, Clerk
19
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